Constitution has NOT served us well

Quite a few have said that our present constitution has served us well. At least one of those that I have heard making the claim cared enough to offer an explanation. According to him, we have not had a crisis that the constitution could not deal with. Of course the commentator completely forgot the 1979/82 debacle that resulted in a ‘wangement’ called Interim Government which was totally foreign to the constitution. But I would prefer to dwell on more defects of our present constitution.

The late Madam Justice Suzie d’Auvergne has been credited for her work on the report of the Constitution Reform Commission.

After having listened to quite a number of lectures, speeches and discussion on the subject in my former capacity as the Outreach Coordinator of the Constitution Reform Commission, I am left with a concept of a constitution that makes it very difficult to concur with those saying that our constitution has served us well and so should probably be left untouched. For those commentators we should not fix it if it ain’t broke. But I would hasten to respond with a question; what’s broken about the donkey cart? The Amish still use it; it is eco-friendly and can take you from Castries to Vieux Fort!

The constitution is expected to be a charter between the people and the state that defines the tools (structures, powers, and resources) that will be made available to those who govern by those who are governed; and how they expect to be governed. We have invented government so that it can help us achieve good life and prosperity. The tools that the constitution makes available to those who govern is solely for that purpose.

On that basis we need to ask some vital questions of the constitution. Are the tools made available to the government sufficient for it to deliver on its mandate? Or, did the constitution provide the government with too much or unfettered powers? Did the constitution install enough safeguards and controls to ensure that the government only and always strives to effectively and efficiently deliver on its mandate? Or, is our constitution doing the absurd to rely on the altruism and integrity of those who govern? If so, Sir Arthur Lewis would be making head stands in his grave. He was always weary of political systems that depended on the altruism of politicians.

In his 1952 publication, Politics in West Africa, Lewis boldly stated that “Economic philosophers insist that it is absurd to devise an economic system on the assumption that men are motivated mainly by a desire to serve; on the contrary, the function of a good economic system is to transmute into social benefit the drive for personal gain which keeps the system going. This is achieved (or sought) by a system of controls which tries to ensure that money can be made only by serving the public: only by offering the market what it wants. Business men seek constantly to escape these controls; strengthening the market to prevent manipulation is one of the continuing tasks of economic democracy. The same applies to political systems.

Politicians, like business men, are motivated by the desire for money, power and prestige as well as by the desire to serve. A good political system assumes that politicians are ordinary men, and seeks through its control to ensure that politicians can fulfill their personal ambitions only by serving the public. A political system whose functioning depended on the altruism of politicians would be just as much an absurdity as an economic system depending upon the altruism of business men.”

Sir Arthur Lewis is essentially stating that your constitution should have its internal controls to guard the people from the perceived shortcomings of those who govern. He is saying that our constitution should allow those governing us to achieve their private objectives ONLY while walking the straight and narrow way of effective and efficient public service.

How the constitution answers those questions would punctuate the verdict of how well it is serving us. In my view, our constitution has created a Political System and system of government with features that are inconsistent with the consistent delivery of the mandate of government at the levels of our expectations! I maintain that it stymies progress by allowing too much waste of our scarce resources. A good constitution should promote optimality at every level and discourage waste everywhere. A good constitution should sufficiently arm the state with structures and powers to appropriately respond to the country’s current and projected future realities and challenges. Above all, it should inspire the nation to progress, encourage development and self sufficiency and the attainment of true potential.

I now present my criticisms of the construct of this present constitution:

Its provisions and structures don’t ensure that our best minds and talent are in government on a consistent basis. In this important game of national development we can’t afford to have our best players on the bench and expect to win. Our constitution needs to ensure that we are playing with our best players at all times.

Our constitution is very tolerant of known areas of waste in our system of government which will obviously stymie our progress and development. I speak of the constant re-organization of government ministries, sometimes at every election cycle. I believe that six well-defined permanent ministries should be etched in our constitution. The Staff Orders carve out a huge chunk of our brain power from participating in politics. I believe that the intent of that rule can be achieved differently without the waste of so scarce human resources. Certain levels of public servants can be allowed leave to partake in elective politics, as obtains in Dominica.

While there may be a need to dilute some of the power of the office of the Prime Minister, the system does not always return a sufficiently powerful leader. The PM is always at the mercy of his peers and so can’t reasonably be expected to lead government most efficiently when his tenure depends on how well he makes his cabinet colleagues happy. Sometimes PMs resort to placing square pegs in round holes or other ‘deals’ in their quest to keep their position of leadership. I believe that a Prime Minister elected by the people would solve that problem as he would be able to hire whomever he pleases from the pool of qualified nationals.

The fusion of the Executive and Legislative Branches of Government?deprives the state of true accountability in government. We need a group beyond the influence of the Executive to oversee the Executive. The current constitution does not guarantee the emergence of an opposition to keep watch over cabinet. This problem could be corrected with a separation of those two units, as the CRC report has recommended. However, the commissioners omitted to deal with the effects of such a change. Which candidate will go warring in the trenches for his party to form the government and the end of it? Some blue-eyed technocrat is going to be earning a fat minister’s salary while he must settle for the peanuts paid to MPs! I believe that the separation can take place but the MP should be rewarded with the privilege of serving as the executive head of his/her constituency’s local government with a reasonable mandatory budget vote and a salary above the scale of a minister. This could be financed by replacing Permanent Secretaries with Ministers thus collapsing the line of authority in the system by one level.

Too much money is spent by government on commissions of inquiry which often turn out to be mechanisms to embarrass political opponents. Notwithstanding, there is a need to keep the cabinet accountable for perceived or known breaches of the people’s confidence. So if it were left to me, I would disallow those inquiries in favour of a change that would make the Director of Audit answerable to parliament. Hence if there is a perception of corruption on a particular matter, parliament can instruct the Director of Audit to investigate and report back. Common sense dictates that the officer who is going to police the executive cannot be one appointed by it and so a Director of Audit should be appointed by the minority interest in parliament.

Given the known value of local government to national development, the constitution does not insist on the existence of such a body at all times. It is left to the whims and fancies of the political directorate. I believe that the constitution should establish a local government and its role and responsibilities. As suggested earlier, the elected MP’s role should be extended to include serving as the head of his/her constituency’s local government. The Council can be made of a minority drawn from representatives of key sectors in the constituency and the rest by the MP.

The constitution does not justify the costliness of a separate Senate. Hence a unicameral system with a few senators representing significant artificial persons (private sector, church, trade unions, the media) is recommended as a good parliament. This will also solve the constitutional deficiency which guarantees the presence of people in parliament to oversee the cabinet if one party captures all of the seats in the House of Assembly. If such a scenario plays out, senators would serve as her majesty’s loyal opposition.

The constitution left no room for the country to off-load itself of an administration that is persistently badly managing the economy and refuses to demit office. I believe that the people should have the power to trigger a dissolution of parliament. Reasons need to be real, practical and not easily corrupted for political mischief.

The language of the constitution is not simple enough for the average person given the fact that it is a charter between the state and its people.

The qualification of an MP is not consistent with the expectations of those important state officers. When you expect parliamentarians to represent you in making laws, etc, how come the qualification for that job is only minimum age of 21, citizenship and Use of English? In order for MPs to do a reasonable job they need to have a working understanding of politics and government, macro economics and business management.

While the constitution has done well in the establishment of the office of the DPP, it does not ensure that the DPP is sufficiently equipped to dispense justice. The current practice of having people languishing in remand for years is unacceptable. Justice must be swift. The constitution needs to create an independent body to assess the needs of that office which would then become a fixture of the Executive’s budget. When it is left to the Executive to fund this office you are tacitly creating a situation of influence over the Judiciary by the Executive. Separation of powers of the arms of government is essential for the smooth functioning of the democratic system.

As relates to the report of the CRC, I believe that it was a colossal waste of time. I believe that Kenny Anthony may have been well intentioned with the setting of the CRC but from what I have read of the report, I am totally embarrassed for the commissioners – the report was lousy. How could you lay before Parliament recommendations for an important matter like this without providing the reasoning behind them?
How are the law makers supposed to interpret the recommendations?

Another matter to which I took serious objection was the presence in the report of a dissenting view by a commissioner. Preposterous! The report was supposed to be a summary of all contending views along with the own thinking of the commission as a whole. What was the motive for that dissenting view? That commissioner should have been schooled in the doctrine of collective responsibility before accepting to become a member of the commission.